The following terms and conditions (the “Terms and Conditions”) govern your use of this web site, and any content made available from or through this web site, including any subdomains thereof (collectively the “Web Site”). The Web Site is made available by Designetics Inc. (“Designetics Inc.” or “we” or “us” or “our”). We may change the Terms and Conditions from time to time, at any time and in our sole discretion without notice to you, by posting such changes on the Web Site. BY USING THE WEB SITE, YOU ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS AS APPLIED TO YOUR USE OF THE WEB SITE. If you do not agree to these Terms and Conditions, you may not access or otherwise use the Web Site.
1. Property Rights
As between you and Designetics Inc., Designetics Inc. owns, solely and exclusively, all rights, title and interest in and to the Web Site, all the content (including, as an example and without limitation, audio, photographs, illustrations, graphics, other visuals, video, copy, text, software, and titles), code, data and materials thereon, the look and feel, design and organization of the Web Site, and the compilation of the content, code, data and materials on the Web Site, without limitation any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein. Your use of the Web Site does not grant to you ownership of or any other rights or interests in or to any content, code, data or materials you may access on or through the Web Site. The Web Site is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws. The contents of the Web Site are only for your personal use. All materials contained on the Web Site are protected by copyright, and are owned or controlled by Designetics Inc. or the party credited as the provider of the content. You shall abide by any and all additional copyright notices, information, or restrictions contained in any content on the Web Site. Copying or storing of any content for other than personal, noncommercial use is expressly prohibited without the prior written permission from Designetics Inc. or the copyright holder identified in the individual contents copyright notice. Designetics Inc.’s names, logos, and trademarks may not be otherwise used by you in any manner without the prior written consent of Designetics Inc.
2. Limited License
You may access and view the content on the Web Site on your computer or other device and, unless otherwise indicated in these Terms and Conditions or on the Web Site, make single copies or prints of the content on the Web Site for your personal, internal use only. Use of the Web Site and the services offered on or through the Web Site, are only for your personal, non-commercial use.
3. Prohibited Use
Any commercial or promotional distribution, publishing or exploitation of the Web Site, or any content, code, data or materials on the Web Site, is strictly prohibited unless you have received the express prior written permission from authorized personnel of Designetics Inc. or the otherwise applicable rights holder. Other than as expressly allowed herein, you may not download,upload, post, display, publish, copy, reproduce, distribute, transmit, modify, perform, broadcast, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials on or available through the Web Site. Further,you represent, warrant and covenant that you shall not download, upload, post, display, or transmit to or distribute or otherwise publish through the Web Site any materials which: (a) restrict or inhibit any other user from using and enjoying the Web Site; (b) are unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, offensive, pornographic, profane, sexually explicit or indecent; (c) constitute or encourage conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate law; (d) violate, plagiarize or infringe the rights of third parties including, without limitation, copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; (e) contain a virus or other harmful component; (f) contain any information, software or other material of a commercial nature; (g) contain advertising of any kind; or (h) constitute or contain false or misleading indications of origin or statements of fact. Finally, you agree that you may not alter, edit, delete, remove, otherwise change the meaning or appearance of, or repurpose, any of the content, code, data, or other materials on or available through the Web Site, including, without limitation, the alteration or removal of any trademarks, trade names, logos, service marks, or any other proprietary content or proprietary rights notices. You acknowledge that you do not acquire any ownership rights or other rights of interest by downloading any copyrighted material from or through the Web Site. If you make other use of the Web Site, or the content, code, data or materials thereon or available through the Web Site, except as otherwise provided above, you may violate copyright and other laws of the United States or other countries, as well as applicable state or local laws, and may be subject to liability for such unauthorized use.
The trademarks, logos, service marks and trade names (collectively the “Trademarks”) displayed on the Web Site or on content available through the Web Site are registered and unregistered Trademarks of Designetics Inc. and others and may not be used in connection with products and/or services that are not related to, associated with, or sponsored by their rights holders that are likely to cause customer confusion, or in any manner that disparages or discredits their rights holders. All Trademarks not owned by Designetics Inc. that appear on the Web Site or on or through the Web Site’s services, if any, are the property of their respective owners. Nothing contained on the Web Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Web Site without the written permission of Designetics Inc. or the third party that may own the applicable Trademark. Your misuse of the Trademarks displayed on the Web Site or on or through any of the Web Site’s services is strictly prohibited.
5. User Information
6. Submitted Materials
7. Prohibited User Conduct
You warrant and agree that, while using the Web Site and the various services and features offered on or through the Web Site, you shall not: (a) impersonate any person or entity or misrepresent your affiliation with any other person or entity; (b) insert your own or a third party’s advertising, branding or other promotional content into any of the Web Site’s content, materials or services, or use, redistribute, republish or exploit such content or service for any further commercial or promotional purposes; or (c) attempt to gain unauthorized access to other computer systems through the Web Site. You shall not: (i) engage in spidering, “screen scraping,” “database scraping,” harvesting of e-mail addresses, wireless addresses or other contact or personal information, or any other automatic means of obtaining lists of users or other information from or through the Web Site or the services offered on or through the Web Site, including without limitation any information residing on any server or database connected to the Web Site or the services offered on or through the Web Site; (ii) obtain or attempt to obtain unauthorized access to computer systems, materials or information through any means; (iii) use the Web Site or the services made available on or through the Web Site in any manner with the intent to interrupt, damage, disable, overburden, or impair the Web Site or such services, including, without limitation, sending mass unsolicited messages or “flooding” servers with requests; (iv) use the Web Site or the Web Site’s services or features in violation of Designetics Inc.’s or any third party’s intellectual property or other proprietary or legal rights; or (v) use the Web Site or the Web Site’s services in violation of any applicable law. You further agree that you shall not attempt (or encourage or support anyone else’s attempt) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the Web Site or the Web Site’s services, or any content thereof, or make any unauthorized use thereof. You agree that you shall not use the Web Site in any manner that could damage, disable, overburden, or impair the Web Site or interfere with any other party’s use and enjoyment of the Web Site or any of its services. You shall not obtain or attempt to obtain any materials or information through any means not intentionally made publicly available or provided for through the Web Site.
8. Linking to the Website
You agree that if you include a link from any other web site to the Web Site, such link shall open in a new browser window and shall link to the full version of an HTML formatted page of this Web Site. You are not permitted to link directly to any image hosted on the Web Site or our services, such as using an “in-line” linking method to cause the image hosted by us to be displayed on another web site. You agree not to download or use images hosted on the Web Site on another web site, for any purpose, including, without limitation, posting such images on another site. You agree not to link from any other web site to this Web Site in any manner such that the Web Site, or any page of the Web Site, is “framed,” surrounded or obfuscated by any third party content, materials or branding. We reserve all of our rights under the law to insist that any link to the Web Site be discontinued, and to revoke your right to link to the Web Site from any other web site at any time upon written notice to you.
You agree to defend, indemnify and hold Designetics Inc.,its affiliates’, and their representative directors, officers, employees and agents harmless from any and all claims, liabilities, costs and expenses, including attorneys’ fees, arising in any way from your use of the Web Site, your placement or transmission of any message, content, information, software or other materials through the Web Site, or your breach or violation of the law or of these Terms and Conditions. Designetics Inc. reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Designetics Inc.’s defense of such claim.
10. Third Party Web Sites
You may be able to link from the Web Site to third party web sites and third party web sites may link to the Web Site (collectively, “Linked Sites”). You acknowledge and agree that we have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through Linked Sites, even if they are owned or run by affiliates of ours. Links to Linked Sites do not constitute an endorsement or sponsorship by us of such web sites or the information, content, products, services, advertising, code or other materials presented on or through such web sites. The inclusion of any link to such sites on our Site does not imply Designetics Inc.’s endorsement, sponsorship, or recommendation of that site. Designetics Inc. disclaims any liability for links: (a) from another web site to this Web Site; and (b) to another web site from the Web Site. Designetics Inc. cannot guarantee the standards of any web site to which links are provided on the Web Site nor shall Designetics Inc. be held responsible for the contents of such sites, or any subsequent links. Designetics Inc. does not represent or warrant that the contents of any third party web site is accurate, compliant with state or federal law, or compliant with copyright or other intellectual property laws. Also, Designetics Inc. is not responsible for or any form of transmission received from any Linked Sites. Any reliance on the contents of a third party web site is done at your own risk and you assume all responsibilities and consequences resulting from such reliance.
11. DISCLAIMER OF WARRANTIES
THE WEB SITE, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, CONTENT, FUNCTIONS AND MATERIALS PROVIDED THROUGH THE WEB SITE, ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, PLAYABILITY, DISPLAYABILITY, ACCURACY, PRECISION, CORRECTNESS, THOROUGHNESS, COMPLETENESS, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED. WE DO NOT WARRANT THAT THE WEB SITE OR THE SERVICES, CONTENT, FUNCTIONS OR MATERIALS PROVIDED THROUGH THE WEB SITE WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE WEB SITE OR THE PROVIDED SERVICES WILL MEET USERS’ REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE WEB SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. DESIGNETICS INC. ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR EQUIPMENT ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE WEB SITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO CONTENT, OR AUDIO CONTENT FROM THE WEB SITE. IF YOU ARE DISSATISFIED WITH THE WEB SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE WEB SITE.
WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THE WEB SITE IS CORRECT AND UP-TO-DATE. WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION PROVIDED ON THE WEB SITE AT ANY TIME, IN OUR SOLE DISCRETION, AND WITHOUT ANY PRIOR WARNING. DESIGNETICS INC. NEITHER ENDORSES NOR IS RESPONSIBLE FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT ON THE WEB SITE, NOR FOR ANY OFFENSIVE, DEFAMATORY, OBSCENE, INDECENT, UNLAWFUL OR INFRINGING POSTING MADE THEREON BY ANYONE OTHER THAN AUTHORIZED DESIGNETICS INC. EMPLOYEE SPOKESPERSONS WHILE ACTING IN THEIR OFFICIAL CAPACITIES (INCLUDING, WITHOUT LIMITATION, OTHER USERS OF THE WEB SITE). IT IS YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION, OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE WEB SITE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC INFORMATION, OPINION, ADVICE OR OTHER CONTENT, INCLUDING, WITHOUT LIMITATION, TO FINANCIAL, HEALTH, OR LIFESTYLE INFORMATION, OPINION, ADVICE OR OTHER CONTENT.
12. LIMITATION OF LIABILITY
IN NO EVENT, INCLUDING, WITHOUT LIMITATION, TO NEGLIGENCE, SHALL DESIGNETICS INC., OR ANY OF ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE WEB SITE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, YOUR PROVISION OF INFORMATION VIA THE WEB SITE, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE WEB SITE. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS AND CONDITIONS OR YOUR USE OF THE WEB SITE EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO DESIGNETICS INC. FOR YOUR USE OF THE WEB SITE OR PURCHASE OF PRODUCTS VIA THE WEB SITE.
13. Applicable Laws
We control and operate the Web Site from our offices in the United States of America. We do not represent that materials on the Web Site are appropriate or available for use in other locations. Persons who choose to access the Web Site from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. You waive your their right to a trial by jury.
Designetics Inc. may terminate, change, suspend or discontinue any aspect of the Web Site or the Web Site’s services at any time, for any or no reason, and in its sole discretion. Designetics Inc. may restrict, suspend or terminate your access to the Web Site and/or its services if we believe you are in breach of the Terms and Conditions or applicable law, or for any other reason without notice or liability. Designetics Inc. maintains a policy that provides for the termination in appropriate circumstances of the Web Site use privileges of users who are repeat infringers of intellectual property rights.
Designetics Inc. reserves the right, in its sole discretion, to change, modify, add or remove any portion of the Terms and Conditions, in whole or in part, at any time. Changes in the Terms and Conditions will be effective when posted. Your continued use of the Web Site and/or the services made available on or through the Web Site after any changes to the Terms and Conditions are posted will be considered acceptance of those changes.
16. Changes to Website
Designetics Inc. may change, suspend or discontinue any aspect of the Web Site, including the price and availability of any product, Web Site feature, database, or content, at any time and for any reason, in its sole discretion. Designetics Inc. may also impose limits on certain features and services or restrict your access to parts or all of the Web Site without notice or liability. Designetics Inc. reserves the right, in its sole discretion, to refuse service or cancel orders.
Terms and Conditions for Sale of Products
DESIGNETICS MANUFACTURES CUSTOM PRODUCTS. WE DO NOT STOCK INVENTORY. ALL ORDERS ARE MADE AT THE TIME OF SALE AND BUILT TO ORDER. ALL SALES ARE FINAL.
ACCEPTANCE AGREEMENT: Buyer’s order of goods from Seller (Designetics, Inc.) shall constitute an effective acceptance of and be limited to the terms and conditions set forth herein (“Terms and Conditions”). Any proposal for additional or different Terms or Conditions or any attempt by Buyer to vary in any degree the Terms and Conditions set forth herein is objected to and rejected.
SALES CONTRACT: Any sales contract between Seller and Buyer shall be subject to these terms and conditions and not be effective until accepted by Seller at its home office in Holland, Ohio.
QUOTATIONS: Stenographical and clerical errors are subject to correction.
CREDIT: Accounts will be opened only on approved credit.
TERMS OF PAYMENT: Buyer agrees to Seller’s payment terms. In the event payment is not received within that time period, Buyer agrees to pay a 1½ % per month finance charge.
CURRENCY: Invoices for material delivered under this order are payable only in U.S. dollars
CANCELLATION: Orders may be cancelled or deliveries deferred only upon the condition that Buyer immediately makes payment to Seller for all work completed at the unit price including any and all materials already in transit at time of cancellation
PACKAGING AND PACKING: Standard methods will be used.
DELIVERIES: Seller will use all reasonable means to fill orders within the time promised. Seller does not assume responsibility for any damages resulting from or attributable to any delays.
SHIPMENT: All material is shipped F.O.B. shipping point. Seller’s liability for delivery ceases upon making delivery of product to carrier at shipping point, the carrier acting as Buyer’s agent. In ordering, Buyer should state explicitly the method of shipment preferred and in the absence of shipping direction Seller may use discretion. Shipments will be made at cost to the Buyer and freight charges will be included on the invoice.
WARRANTY: ALL EXPRESS AND IMPLIED WARRANTIES ARE VOID IF ANY ALTERATIONS, MODIFICATIONS, OR CHANGES ARE MADE BY BUYER TO SELLER’S EQUIPMENT. USE OF APPLICATORS AND ACCESSORIES OTHER THAN THOSE MANUFACTURED AND SOLD BY SELLER MAY VIOLATE PATENTS HELD BY SELLER AND MAY VOID ANY WARRANTIES. BUYER IS REQUIRED TO USE SELLER’S APPLICATORS WITH SELLER’S EQUIPMENT TO OPTIMIZE THE EQUIPMENT FUNCTION.
CHANGES, MODIFICATIONS, WAIVER: No change in specifications, drawings, or delivery for the goods may be made without the prior written consent of Seller. These terms may be modified only in writing signed by a designated officer of Seller.
SELLER’S TECHNICAL ASSISTANCE: At Buyer’s request, and at Seller’s option, Seller may provide such technical assistance and information at the Field Service Rate.
CLAIMS: If Buyer claims delivery of product is not as ordered, Buyer must notify Seller within ten (10) days of receipt of shipment or the product is deemed accepted by Buyer and in full satisfaction of any and all warranties. If such claim is sustained and the product furnished is not as ordered, Seller shall repair, replace, credit or complete the order with the limitations as set forth herein.
RETURNED GOODS: No shipments of returned goods shall be made without written authorization from Seller. Seller shall pay the freight charges of authorized returns, but reserves the right to specify the type and routing of the carrier. Any returns received without authorization shall be immediately returned to Buyer at Buyer’s expense and Buyer shall be invoiced for any handling and/or freight charges incurred by Seller.
INDEMNIFICATION: Buyer agrees to indemnify, defend and hold harmless Seller from any claims, costs or other liabilities arising from the use of the product sold to Buyer including resale and distribution
ARBITRATION CLAUSE: Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by an arbitrator selected by Seller. The place of arbitration shall be Lucas County, Ohio. Ohio law shall apply. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
JURISDICTION AND VENUE: The Agreement shall be governed and constituted by the laws of Ohio. The parties submit to the personal jurisdiction and venue of the courts in Lucas County, Ohio for the purpose of enforcing any arbitration award.
GOVERNING LAW: Any contract from this Proposal shall be governed by the laws of the State of Ohio
PROPRIETARY PROPERTY: This quotation along with all accompanying information including documentation, drawings, data, software, and prototypes are the confidential and proprietary intellectual property of Seller and may not be used in any manner, which may be deemed detrimental to Seller. Disclosure of this information including prototypes to third parties is expressly prohibited without written permission from Seller. Buyer agrees not to reverse engineer, produce, or otherwise copy any of Seller products delivered under this agreement. All documentation including manuals, specifications, drawings, and accompanying information, is the confidential and proprietary property of Seller and may not be used in any manner without the written approval of Seller. Seller will at no time directly or indirectly reproduce, disclose, advertise, publish or otherwise make known (a) the fact that Seller and Buyer have entered into this Agreement, or that Seller has contracted to or has furnished Equipment to Buyer, or (b) any information, design, specification, idea, concept, plan, copy, formula, drawing, process, procedure, performance characteristics or other confidential information which has been or will be disclosed to Seller in connection with the Equipment or their evaluation, study, design, production, testing, installation or performance, or received in performing this Agreement (collectively, the “Information”). Seller will not use any of Buyer’s Information which is disclosed to or in possession or control of Seller except in performing this Agreement, unless in compliance with written instructions of Buyer.
INTELLECTUAL PROPERTY: Buyer agrees to respect and not infringe Seller’s intellectual property including patents, copyrights, trade secrets, know-how, and trademarks. Buyer agrees not to initiate or support any litigation challenging Seller’s intellectual property. Buyer agrees not to file any patent application or copyright on any of Seller’s products.
LIMITED LIABILITY: Seller shall not be liable, whether arising under contract, tort (including negligence), strict liability, or otherwise, for loss of anticipated profits, loss by reason of plant shutdown, non-operation or increased expense of operation, cost of money, loss of use of equipment, capital or revenue, or for any indirect, special, incidental or consequential loss or damage. The Seller’s maximum liability, whether arising from breach of contract, tort (including negligence), strict liability, breach of warranty or otherwise shall not exceed the purchase order price. Seller will not be responsible for any patent or copyright infringement by Buyer in the use of the product provided by Seller. Buyer will defend and hold harmless Seller from any litigation for patent or copyright infringement.
BATTLE OF THE FORMS NOT APPLICABLE: The parties have agreed and it is their intent that the battle of the forms Section 2-207 of the Uniform Commercial Code shall not apply to these Terms and Conditions or to any invoice or acceptance form of Seller relating to these Terms and Conditions. It is the parties’ intent that these Terms and Conditions shall exclusively control the relationship of the parties, and in the event of any inconsistency between any invoice or acceptance form sent by Seller to Buyer and these Terms and Conditions, these Terms and Conditions shall control.
DESIGNETICS, INC.’S STANDARD PURCHASE TERMS AND CONDITIONS
The following terms and conditions form part of the purchase of Materials by Buyer from Seller, and forms an integral part of each Purchase Order issued by Buyer to Seller. Buyer has previously been furnished with Seller’s sales quotation.
1. APPLICABLE CONTRACT PROVISIONS:
a. “Buyer” means Designetics, Inc. and any of its affiliates, subsidiaries, successors, assigns, or designees issuing the Purchase Order.
b. “Seller” means the person, firm, or company to whom the Purchase Order is addressed and from whom certain goods and/or services are being purchased.
c. “Materials” means all the goods and/or services to be supplied by Seller under the Purchase Order.
d. “Purchase Order” means the Purchase Order issued by Buyer for the supply of Materials, which may be an oral communication or a written or electronic document, and may also include particular shipping instructions and/or other specifications required by Buyer for the Materials.
e. These terms and conditions, together with the Purchase Order, constitute an offer by Buyer to purchase the Materials from Seller pursuant to the terms and conditions described herein. This offer is not an acceptance or a confirmation of any previous offer or proposal from Seller, and this offer shall be deemed to be a rejection and counteroffer with respect to any previous offer or proposal from Seller. Acceptance of any shipment of the Materials shall not be construed as an acceptance of any such previous offer or proposal or an acceptance of any different or additional terms proposed by Seller. No additional or different terms, including those which appear in any quotation, acceptance, or acknowledgment of or written confirmation by Buyer, shall be of any force or effect unless Buyer expressly agrees in writing to any such additional or different terms. Buyer hereby notifies Seller of its objection to any additional or different terms, except to the extent Buyer has expressly agreed to any such additional or different terms in writing.
f. This offer shall become an agreement (this “Agreement”) by and between Buyer and Seller upon acceptance by Seller. Seller shall be deemed to have accepted this offer by the occurrence of the earliest of commencement of performance called for in the Purchase Order, delivery of the Materials to Buyer, issuing written acceptance or confirmation of the Purchase Order, or by any other act or communication constituting legal acceptance of the Purchase Order, whether or not any such acceptance or confirmation purports to state terms additional to or different from those stated herein. Buyer hereby expressly objects to and rejects any such additional or different terms or provisions, and none of such different terms or provisions shall be deemed to be a part of this Agreement unless specifically agreed to in writing by Buyer.
2. SALE OF MATERIALS:
a. Seller agrees to sell, transfer, and deliver the Materials to Buyer for the purchase price set forth in the Purchase Order, subject to all of the covenants, terms, and conditions hereof.
b. Buyer agrees to purchase the Materials, subject to all of the covenants, terms, and conditions hereof, and to pay Seller the purchase price set forth in the Purchase Order. Typographical and other clerical errors in the Purchase Order are subject to correction. Buyer reserves the right at any time to modify the Purchase Order upon notice to Seller. Upon such notice, Buyer and Seller shall negotiate an equitable adjustment in price and/or time of performance.
c. Seller agrees to obtain from Buyer a Purchase Order number for each Purchase Order between the parties. Seller further agrees it will clearly reference the applicable Purchase Order number on each invoice relating to such Purchase Order. Seller acknowledges that any invoice submitted to Buyer that does not clearly reference Buyer’s corresponding Purchase Order number may be considered invalid by Buyer and may result in delayed payment.
3. PURCHASE PRICE AND TERMS OF PAYMENT:
a. Materials shipped under this Agreement shall be invoiced at the price set forth in the Purchase Order. Unless otherwise specified on the Purchase Order, payment of the purchase price shall be due seventy (70) days after the later of Buyer’s receipt of Seller’s correct invoice for such shipment or the date on which the Materials are received by Buyer. Seller agrees that it will take no adverse action against Buyer for any invoices not paid resulting from Seller’s failure to include or clearly reference Purchase Order numbers on the applicable invoices or accurately invoice Buyer.
b. The purchase price set forth in the Purchase Order is fixed and is not subject to change. Unless otherwise specified in the Purchase Order, the purchase price for the Materials shall be quoted in the currency of the United States of America (“USD”) and shall be inclusive of all applicable taxes (including, without limitation, sales, use, excise, value added, or other applicable taxes), customs, duties, custom fees, other governmental charges, handling costs, packaging costs, costs of insurance, consulting or other service charges, and any other addition, charge, or cost to Buyer, whether foreseen or unforeseen. Buyer shall, however, pay for any taxes that it is statutorily required to pay. Seller shall provide Buyer with documentation satisfactory to Buyer that establishes Buyer’s statutory liability to pay such taxes. If Seller fails to provide such documentation, Buyer shall not be obligated to pay any such taxes.
c. Seller shall be responsible for all shipping and insurance costs, including, without limitation, packing, crating, cartage, and freight costs.
d. Buyer may set off any amount owing at any time from Seller to Buyer or any of its affiliates against any amount payable at any time by Buyer under the Purchase Order
4. SHIPMENT, DELIVERY AND ACCEPTANCE:
a. Seller shall deliver the Materials F.O.B. to the place designated for shipment by Buyer in the Purchase Order. Unless otherwise provided in the Purchase Order: (a) all shipping, drayage, demurrage, storage, insurance, packing, and related charges shall be paid by Seller; (b) all Materials shall be properly and carefully packaged for shipment and packed, marked, and shipped in accordance with Buyer’s packaging instructions and specifications, if any, provided in the Purchase Order or otherwise provided by Buyer and in compliance with all applicable laws; (c) packing slips identifying the proper Purchase Order number and part number must accompany each shipment; (d) Seller shall mark each package of Materials with the Purchase Order number, and where multiple packages comprise a single shipment each package will be shown on packing slips, bills of lading, and invoices; (e) Seller shall mark the Materials, packaging, and packing as instructed by Company and in accordance with the standards of the Uniform Commercial Code as enacted in the State of Ohio, as amended (Ohio Revised Code Chapter 13); (f) Seller shall pay all express and other charges necessary to expedite delivery to enable Seller to meet the applicable delivery schedule; (g) Seller shall ship all late shipments by express or other priority methods of delivery at its expense; and (h) Seller shall issue to Buyer advance shipping notices as may be requested by Buyer. Seller shall be liable for any damage as a result of inadequate protection or packaging regardless of delivery terms. Any loss or damage, whenever occurring, which results from Seller’s improper packaging or crating shall be borne by Seller. Notwithstanding anything in the foregoing to the contrary, title to and risk of loss of the Materials shall pass to Buyer only upon receipt of the same by Buyer, and any rightful rejection or revocation of any Materials by Buyer shall immediately shift the risk of loss of such Materials, wherever located, to Seller. Seller agrees that any contrary provisions of Sections 2-509 and 2-510 of the Uniform Commercial Code shall not apply to this Agreement.
b. Seller accepts full responsibility for the completeness and accuracy of all transport and customs documentation (collectively, the “Shipping Documents”) provided to Buyer. Seller accepts any liabilities resulting from incomplete or inaccurate data on Shipping Documents or failure to comply with any import or export requirements.
c. The time and quantity of deliveries under the Purchase Order and hereunder are of the essence. Deliveries shall be on the date indicated in the Purchase Order, if any, and otherwise as requested by Buyer. If no delivery schedule is provided, deliveries are to be made only in quantities and at times specified in instructions issued by Buyer. Buyer shall have no liability for payment of Materials delivered to Buyer that are in excess of quantities specified in the Purchase Order, and Buyer may return over-shipments to Seller, at Seller’s expense, for all packing, handling, sorting, and transportation charges. Buyer shall have the right, from time to time, to change delivery schedules, temporarily or permanently suspend or stop all or part of the work under the Purchase Order, or cancel any future delivery of any Materials upon notice to Seller. Buyer shall be responsible for additional costs of expedited or other special transportation that Buyer may require as a result of changes to its firm releases or delivery schedules to the extent that: (i) such changes were not caused by Seller; and (ii) Buyer is able recover such costs from its own customers.
d. All Materials shall, before delivery, be subject to inspection, tests, and audits by Buyer or its agent at reasonable times and places. Seller agrees to provide access for Buyer to its facilities at all reasonable times for such inspection, tests, and audits, and, at no additional cost, to provide all assistance and facilities reasonably necessary to perform the same. Neither the inspection, testing, or auditing of any Materials, nor the failure to do so, before delivery to Buyer shall constitute acceptance of any Materials, or relieve Seller from exclusive responsibility for furnishing Materials in strict conformance with the Buyer’s specifications. Seller warrants that it has and shall maintain an adequate quality control/assurance program with respect to the production and delivery of Materials and that it creates and maintains adequate quality control/assurance reports, certificates, affidavits, and other such records relating to the Materials. Seller agrees that, upon request and at no additional charge, it will promptly furnish authenticated copies thereof, as well as applicable certificates of conformance and/or compliance acceptable to Buyer, at the time of, or promptly after, delivery. Seller agrees to notify Buyer of any changes to Seller’s raw materials, manufacturing processes, production processes, production location, analytical processes, and quality control/assurance program that affect the quality or performance of provided Materials, including changes to certificates, affidavits, and other such records relating to the Materials. Further, for any such change that could affect the quality or performance of the provided Materials, Seller shall complete any reasonable qualification processes of Buyer and address Buyer’s concerns about the change.
e. Notwithstanding anything herein to the contrary, Buyer shall have a reasonable opportunity to inspect the Materials after the same have been delivered to Buyer’s premises. Buyer shall not be deemed to have accepted any such Materials until the expiration of such reasonable time for inspection. The parties acknowledge and understand that Buyer may inspect any commercial lot of the Materials consisting of numerous units of the same product by inspecting only a reasonable sampling of such units and that Buyer may revoke acceptance of any other units of such commercial lot which Buyer at a later time discovers to be defective. Upon inspection, Buyer may give Seller notice of rejection or revocation of acceptance, notwithstanding any payment, passage of title, approval, prior test, or inspection. No inspection, approval, test, delay, or failure to inspect or test, or failure to discover any defect or other nonconformance, shall relieve Seller of any obligations under the Purchase Order or impair or waive any right or remedy of Buyer with respect to Seller’s performance hereunder. If, in Buyer’s judgment, the Materials do not conform with the requirements of the Purchase Order, Buyer shall have the right to reject the Materials and, in addition to any other rights and remedies it may have, Buyer may, in its sole discretion: (i) return any or all nonconforming Materials to Seller for reimbursement, credit, replacement, or repair as Buyer may direct; (ii) correct, rework, and/or repair the Materials with all costs associated therewith to be charged to and paid by Seller; or (iii) hold any or all nonconforming Materials, at Seller’s risk and expense, for disposal or correction according to Seller’s instructions. Furthermore, Buyer, at its option, may reduce the quantity of Materials it is obligated to purchase by the quantity of Materials returned to Seller hereunder. Any Materials rejected by Buyer and returned to Seller shall be returned, at Seller’s risk and expense, with the cost of packaging, handling, inspection, examination, transportation, and any other costs incidental thereto to be charged to and paid by Seller. Such Materials shall not thereafter be tendered to Buyer for acceptance unless the previous rejection and requirement of correction are disclosed to Buyer in writing. All such nonconforming Materials that are so remedied shall have the same warranty as stated herein from the date of re-delivery. Acceptance, whether or not it has been revoked, shall not release Seller’s responsibility for latent defects, non-conformities, warranty, or other claims. Nothing in the Purchase Order shall relieve Seller from the obligation of testing, inspection, and quality control. Neither Buyer’s failure to inspect or reject Materials nor Buyer’s payment for Materials shall relieve Seller of any of its obligations hereunder or constitute a waiver of any of Buyer’s rights hereunder.
5. WARRANTY PROVISIONS:
a. Seller hereby warrants to Buyer that, in addition to any and all express and implied warranties provided under the Uniform Commercial Code, as applicable, the Materials: (i) shall be provided in a competent, professional manner and in accordance with the highest standards and best practices of Seller’s industry; (ii) shall be free from defects in design, materials, and workmanship, and shall be merchantable and fit for their particular and intended purposes; (iii) shall conform to and perform in accordance with all applicable specifications, drawings, instructions, samples, standards, regulations, and other requirements, whether referred to in the Purchase Order or otherwise applicable; (iv) when shipped shall be free from all liens, security interests, and encumbrances of any type whatsoever and any actual or claimed patent, copyright, or trademark infringement; (v) shall be composed of all new components and material; and (vi) shall be manufactured, produced, labeled, furnished, and delivered to Buyer in full and complete compliance with all applicable laws, rules, and regulations. These warranties are in addition to all other warranties, express, implied, or statutory, that may be applicable. Buyer’s approval of Seller’s design, material, process, drawing, specifications, or the like shall not be construed to relieve Seller of the warranties set forth herein. Limitations on Buyer’s remedies (or disclaimers of warranties) in documents of Seller, or otherwise, shall not be effective and are hereby objected to and rejected. All warranties and other provisions of this Section 5 shall survive inspection or acceptance of, payment for, and use of the Materials and completion, termination, or cancellation of the Purchase Order, and will run to Buyer, its customers, successors, and assigns, and to users of the Materials. Seller agrees to cooperate with any audit conducted by Buyer or at Buyer’s direction to confirm that the Materials are being generated without reliance on child labor, slave labor, or human trafficking.
6. PROPRIETARY AND PROPERTY RIGHTS:
a. Seller shall not advertise, publicly announce, or provide to any third party any information relating to the existence of this Agreement or use Buyer’s name in any format for any promotion, publicity, marketing, or advertising purpose, without Buyer’s prior written consent. The existence of any business relationship between Seller and Buyer shall be treated by Seller as confidential and proprietary information of Buyer and shall not be disclosed or made available to third parties by Seller without Buyer’s prior written consent.
b. All information, specifications, records, drawings, material, data, goods, equipment, apparatus, computer programs, documents, and technical information disclosed or delivered to Seller by Buyer or developed by Seller as a result of or arising from work or services done for Buyer shall be and remain Buyer’s property, shall be treated and kept by Seller as confidential and proprietary information of Buyer, and shall not be disclosed or made available to third parties by Seller without Buyer’s prior written consent. Seller shall, in the absence of a written mutual agreement for its use for other purposes, use such items only for the purpose of the Purchase Order. Seller also agrees not to use any of such items for the manufacture or production of products or components for any third party or for Seller. Seller agrees not to reverse engineer prototypes, samples, or other items provided by Buyer.
c. The title to any tangible property, including, but not limited to material, goods, equipment, apparatus, documents, and literary property (e.g., drawings, manuscripts, artwork, motion pictures, video programs, and computer software), provided to Seller by Buyer or produced by Seller in submitting a bid or estimate or in carrying out the Purchase Order for Buyer shall be vested in Buyer, and Seller agrees to return or deliver such tangible property to Buyer upon request. Seller hereby expressly assigns to Buyer all copyrights in and to any literary property produced by Seller for Buyer.
d. In the event the Agreement relates to consulting services, Seller shall be considered a consultant and every work or idea created or acquired by or on behalf of Seller for Buyer (past and future) shall be considered a “work made for hire” on behalf of Buyer. It is the intent of the parties that Buyer shall have unrestricted ownership in and to all such works and to any derivative works, without further compensation of any kind to Seller. To the extent that the law would fail to automatically vest in Buyer the full unrestricted ownership of all such works under “work for hire” treatment or similar concepts, Seller hereby assigns to Buyer the copyright and any and all other rights in and to every such work, including any derivatives, and Seller waives any claim of moral right that it may have in or in connection with such work
7. DEFAULT AND TERMINATION:
a. Seller shall be deemed to be in default hereunder if: (i) it violates any of the terms hereof; (ii) fails timely to perform any of its covenants, duties, or obligations hereunder; (iii) it becomes insolvent or unable to pay its debts as they become due; (iv) it applies for or consents to the appointment of a receiver, trustee, liquidator, or custodian; (v) it makes a general assignment for the benefit of creditors; (vi) it is adjudicated bankrupt or insolvent; (vii) it commences a voluntary case under any applicable bankruptcy law or files a voluntary petition or answer seeking reorganization, an arrangement with creditors or an order for relief; (viii) it dissolves; or (ix) it performs or fails to perform any other act, whether pursuant to this Agreement or otherwise, which gives Buyer reasonable grounds to feel insecure with respect to Seller’s future performance under a Purchase Order or hereunder.
b. Upon default by Seller hereunder, Buyer may exercise any or all of the following rights and remedies, in addition to such other rights and remedies as may be provided hereunder or under applicable law: (i) reject or revoke acceptance of any or all of the Materials, whether or not such Materials are defective and whether or not the condition of delivery thereof otherwise relates to, pertains to, concerns, or gives rise to such event of default; (ii) cancel all or any part of the Purchase Order; and/or (ii) immediately terminate this Agreement and the Purchase Order without any liability or obligation whatsoever to Seller with respect to Materials not yet delivered to Buyer at the time of such termination. Upon any such termination by Buyer, Seller shall pay to Buyer a refund of the Purchase Order price, if applicable, for all undelivered Materials or incomplete services in accordance with the Purchase Order. If this Agreement is terminated by Buyer pursuant to this Section 7(b), Buyer shall be entitled to reasonable reimbursement for any labor, material, or other expenses incurred in connection with the Agreement, plus a reasonable amount of overhead. In no event shall Buyer be liable for, and shall make no payment to Seller indirectly or on account of claims by Seller or Seller’s subcontractor with respect to, loss of anticipated profit, unabsorbed overhead, interest on claims arising from termination of the Purchase Order, product development and engineering costs, facility and equipment rearrangement costs or rental, unamortized appreciation costs, and general administrative burden charges with respect to any items or work terminated pursuant to this Section 7. Buyer’s decision to pursue any one such remedy shall not be deemed to be an election not to pursue any other remedy at the same time or at any other time.
c. In connection with termination of the Purchase Order or Buyer’s decision to change to an alternate source of supply, Seller shall cooperate in the transition of supply, including the following (collectively, “Transition Support”): (i) Seller shall continue production and delivery of all Materials as ordered by Buyer, at the prices and other terms stated in the Purchase Order and hereunder, without premium or other condition, during the entire period reasonably needed by Buyer to complete the transition to the alternate supplier(s), such that Seller’s action or inaction causes no interruption in Buyer’s ability to obtain Materials as needed; (ii) at no cost to Buyer, Seller shall promptly provide all requested information and documentation regarding and access to Seller’s manufacturing process, including on-site inspections, bill-of-material data, tooling and process detail, and samples of Materials and components; and (iii) subject to Seller’s reasonable capacity constraints, Seller shall provide special overtime production, storage, and/or management of extra inventory of Materials, extraordinary packaging and transportation, and other special services as expressly requested by Buyer in writing. If the transition occurs for reasons other than Seller’s breach or default, Buyer shall, at the end of the transition period, pay the reasonable, actual cost of Transition Support as requested and incurred, provided that Seller has advised Buyer of its estimate of such amounts and obtained Buyer’s prior written consent to incur such amounts. Any Transition Support costs incurred by Seller without Buyer’s prior written consent shall be for Seller’s account.
d. Buyer may terminate the Purchase Order, in whole or in part, at any time for convenience by giving written notice to Seller. After receiving written notice of termination, Seller shall immediately cease production and delivery of all Materials indicated in the notice of termination. Unless such termination is due to default of Seller or failure of Seller to assure adequate performance, Buyer shall pay Seller, on a pro rata basis, for Materials delivered as of the date of termination. Upon such payment, all finished Materials for which Buyer has paid shall become the property of Buyer and will be released by Seller to Buyer for pick-up and removal, upon demand. The provisions of this clause are without prejudice to any other rights or remedies of Buyer, including those resulting from default by Seller hereunder.
a. To the maximum extent allowed by law, Seller shall defend, indemnify, and hold Buyer and Buyer’s employees and agents harmless from and against all sums, costs, liabilities, losses, obligations, suits, actions, damages, back charges, penalties, fines, interest and other expenses (including, without limitation, reasonable attorneys’ fees) that such indemnified party may incur or be obligated to pay as a result of: (a) the production and delivery of, or any defect in, Materials supplied hereunder; (b) breach of any representation, warranty, or covenant, whether caused by Seller, a supplier of Seller, or employees or invitees of either of them, and in each case whether or not caused or contributed to by the fault or negligence of any of the indemnified parties; (c) Seller’s negligence, use, ownership, maintenance, transfer, transportation, or disposal of any of the Materials; (d) any infringement or alleged infringement of the industrial or intellectual property rights (including, without limitation, patent rights and copyrights) of others arising from Seller’s plans, designs, specifications (including, without limitation, Seller’s trademarks and brand names), manufacture, or production of the Materials (except to the extent such claims arise from or relate to: (A) any item or component designed by Buyer; (B) Buyer’s modification of any Material without Seller’s written consent; or (C) Buyer’s use of any Material in combination with any specifications, records, drawings, data, computer programs, program documentation, or any other technical information not designed or manufactured by Seller); or (e) Seller’s violation or alleged violation of any federal, state, county, or local laws or regulations, including, without limitation, the laws and regulations governing product safety, labeling, packaging, and labor practices. Seller waives the application of the doctrine of comparative negligence and other doctrines that may otherwise allocate the liability covered by Seller’s indemnity provided that nothing contained herein shall obligate Seller to indemnify such indemnified parties from any claim which arises from the sole negligence of any such indemnified party. Seller agrees to waive and release any rights of contribution, indemnity, or subrogation it may have against any of such indemnified parties as a result of any indemnity claim asserted by another indemnified party under this Section 8(a). Seller, for itself, its successors, assigns, and subcontractors hereby expressly agrees to waive any provision of any workers’ compensation act or other similar law whereby Seller could preclude its joinder by Buyer as an additional defendant, or avoid liability for damages, contribution, or indemnity in any action at law, or otherwise where Seller’s or its subcontractor’s employees, heirs, assigns, or anyone otherwise entitled to receive damages by reason of injury or death brings an action at law against any such indemnified party. Seller’s obligation to Buyer shall not be limited by any limitation on the amount or type of damages, benefits, or compensation payable by or for Seller under any workers’ compensation acts, disability benefit acts, or other employee benefit acts on account of claims against Buyer by an employee of Seller or anyone employed directly or indirectly by Seller or anyone for whose acts Seller may be liable. In particular, but without altering or in any way limiting the general application of the waiver set forth in the previous sentence, Seller expressly waives application of Section 35, Article II of the Ohio Constitution and Ohio Revised Code Section 4123.74, as the same may be amended from time to time. The obligations in this Section 8 shall not be altered by any limitation on the amount or type of damages, compensation, or benefits payable by Seller under any Workers’ Compensation Act, U.S. Longshoremen’s and Harbor Workers’ Act, or any other employee benefit act. Seller’s obligations hereunder shall not be limited to the extent of any insurance available to or provided by Seller.
a. For the duration of this Agreement and for three (3) years following its completion or termination, Seller shall secure and maintain in effect, at its own expense, by insurance companies rated A-VII or better by A.M. Best, at least the following insurance coverage that will fully protect both Seller and Buyer: (i) commercial general liability (including product liability and completed operations liability) in a sum no less than $5 million per occurrence; (ii) automobile liability with a minimum combined single limit of $1 million per occurrence; (iii) worker’s compensation in an amount no less than the applicable statutory minimum requirement; and (iv) employer’s liability in an amount no less than $1 million per occurrence. The insurance Seller is required to maintain under this Agreement shall: (A) name Buyer and its affiliates, directors, officers, employees and agents (collectively, the “Buyer Parties”) as additional insureds; (B) be endorsed to provide a waiver of subrogation in favor of the Buyer Parties; and (C) be primary over any other insurance available to Buyer or any self-insurance program of Buyer.
b. Prior to delivery of any Materials, Seller will provide to Buyer certificate(s) of insurance evidencing that Seller maintains insurance in accordance with the foregoing requirements. Buyer shall have no obligation to examine such certificate(s) or to advise Seller in the event the insurance is not in compliance with Buyer’s requirements. Buyer’s receipt and/or acceptance of certificate(s) not in compliance with Buyer’s requirements shall not be construed as a waiver of such insurance requirements, which constitute a material condition to this Agreement. Further, the insurance coverage and amounts to be maintained are not intended to and shall not in any manner limit or qualify the liabilities and obligations of Seller.
10. FORCE MAJUERE:
a. In the event Seller is prevented or delayed from performing any of its obligations hereunder on account of any law or legally binding order (excluding an order of court relating to, or based upon insolvency proceedings), regulation or other act of any government or department or agency thereof having jurisdiction over Seller, or on account of acts of God, fires, floods, natural disasters, wars, sabotage, or other acts beyond the reasonable control of Seller (each, a “Force Majeure Event”), which shall, however, not include nonperformance by any sub-supplier for reasons other than a Force Majeure Event applying to such sub-supplier, Seller shall be excused from performing such obligations for the term of the event and Buyer shall be excused from performing its obligations hereunder to a like extent. Upon the occurrence of a Force Majeure Event, Seller shall immediately notify Buyer thereof. If such Force Majeure Event shall affect only part of Seller’s capacity to perform under other supply agreements of Seller, then Seller may allocate production and deliveries among all customers of Seller, including Buyer and including Seller’s own requirements for further manufacture, in any manner which Seller deems fair and reasonable under the circumstances. If such Force Majeure Event shall render Seller wholly unable to perform its obligations hereunder for a period of sixty (60) consecutive days, then Buyer shall have the right to terminate the Purchase Order by giving written notice of termination to Seller. During any period of delay or failure to perform by Seller during a Force Majeure Event, Buyer may purchase the Materials from other sources. Seller shall within ten (10) days at Buyer’s request, provide adequate assurances that any delay or failure to perform due to a Force Majeure Event shall not exceed sixty (60) days. If Seller does not provide adequate assurances the delay or failure to perform shall cease within sixty (60) days, Buyer may immediately cancel the Purchase Order. Buyer expressly acknowledges that strike, lockout, or any labor disputes shall not be deemed a Force Majeure Event, and agrees that Seller shall do everything reasonably possible to remain in a position to perform its obligation under the Purchase Order in case of any strike, lockout, or labor disturbance affecting the due performance of Seller’s obligations.
11. GENERAL PROVISIONS:
a. Seller shall, at Seller’s expense, furnish all labor, materials, equipment, transportation, facilities, and other items that are necessary to meet the Purchase Order requirements. Time is of the essence in Seller’s performance. Seller must immediately notify Buyer whenever Seller has knowledge of an actual or potential delay to the timely performance of the Purchase Order. In the event of Seller’s refusal or failure to meet the delivery date(s) specified in the Purchase Order, Buyer may, without limiting its other rights and remedies, direct expedited routing and charge excess costs incurred thereby to Seller or cancel all or part of the Purchase Order.
b. This Agreement and the Purchase Order shall constitute the complete understanding and contract between Seller and Buyer with respect to the subject matter hereof and thereof and supersedes any prior written or oral understandings with regard thereto. No purported amendment, modification, or waiver of any provision of the Agreement or the Purchase Order shall be binding on Buyer unless set forth in a written document signed by an authorized representative of Buyer. Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of the Agreement or the Purchase Order between Seller and Buyer or of the same circumstance or event upon any recurrence thereof.
c. This Agreement, the Purchase Order and the rights, benefits, duties, and obligations of the parties hereunder and thereunder shall inure to the benefit of and be binding upon the parties hereto and upon their respective assigns and successors in interest. Seller may not assign, transfer, delegate, or subcontract any of its rights, duties, or obligations under this Agreement or the Purchase Order without Buyer’s prior written consent. Seller is responsible for the performance or non-performance of any of its subcontractors and will indemnify, defend, and hold harmless Buyer from and against all claims, actions, losses, damages, costs, and expenses (including reasonable attorneys’ fees) arising from any of its subcontractor’s acts or omissions.
d. The parties acknowledge that the transaction that is the subject matter of this Agreement and the Purchase Order bears a reasonable relation to the State of Ohio and agree that this Agreement and the Purchase Order shall be governed by, construed, interpreted, and enforced in accordance with the laws of the State of Ohio, without reference to any conflicts of law principles. The parties specifically intend that Uniform Commercial Code as enacted in the State of Ohio, as amended (Ohio Revised Code Chapter 13), shall govern and control all aspects of the Agreement and the Purchase Order and their interpretation and that all the definitions contained in those statutes will be applicable to the Agreement, except when this Agreement specifically provides otherwise. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and the Purchase Order. Seller hereby consents to the exclusive jurisdiction and venue of the Federal and state courts located in the Lucas County, Ohio as the exclusive forum for the resolution of any disputes between the parties and arising under this Agreement or the Purchase Order.
e. Seller and Purchaser are independent contracting parties and nothing in this Agreement or the Purchase Order shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party an authority to assume or create any obligation on behalf of or in the name of the other.
f. During the term of this Agreement and one (1) year following completion of final delivery of the Materials identified in the Purchase Order, Seller agrees that it will not, without Buyer’s prior written consent, directly or indirectly through third parties, employ, solicit, engage, or retain the services of Buyer’s employees or personnel.
g. Seller agrees to comply with all federal, state, and local laws, rules, regulations, executive purchase orders, and ordinances that may be applicable to Seller’s performance of its obligation under this Agreement and the Purchase Order. In addition, Seller warrants the Materials covered by this Agreement and the Purchase Order, when delivered to Buyer, shall comply with all applicable federal, state, and local laws, rules, regulations, executive orders, and ordinances.
h. The failure of either party at any time to require performance by the other party of any provision of this Agreement and the Purchase Order shall in no way affect the right to require such performance at any time thereafter; nor shall the waiver of either party of a breach of any provision of this Agreement and the Purchase Order constitute a waiver of any succeeding breach of the same or any other provision.
i. Seller agrees to notify Buyer in writing at least thirty (30) days before any of the following: (i) the sale or transfer of all or substantially all of Seller’s assets; (ii) the merger or consolidation of Seller; and/or (iii) the sale or transfer of more than 51% of the voting securities, partnership interest, and/or other equity interests in Seller. Such notice must state who will be responsible for the performance owing to Buyer hereunder before and after the effective date of such sale, merger, consolidation, or transfer. Buyer must be provided with documentation sufficient to verify the responsible party. Upon the receipt of the written notice and such documentation, Buyer may, at its election: (A) enter into a new Purchase Order with the successor; or (B) terminate the Purchase Order.
j. If any term of this Agreement or the Purchase Order is invalid or unenforceable under any statute, regulation, ordinance, executive order, or other rule or law, such terms shall be deemed reformed or deleted, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of this Agreement and the Purchase Order shall remain in full force and effect.
k. The parties agree and it is their intent that the battle of the forms Section 2-207 of the Uniform Commercial Code shall not apply to the Agreement, the Purchase Order, any invoice or acceptance form of Seller relating to the Agreement or the Terms, or any other writing relating to the Agreement or the Purchase Order. It is the parties’ intent that the terms of this Agreement and the Purchase Order shall exclusively control the relationship of the parties, and in the event of any inconsistency between the terms of this Agreement and the Purchase Order, the terms of this Agreement shall govern and control.